State v. Tabaldi

77 A.3d 1124, 165 N.H. 306
CourtSupreme Court of New Hampshire
DecidedOctober 1, 2013
DocketNo. 2012-214
StatusPublished
Cited by21 cases

This text of 77 A.3d 1124 (State v. Tabaldi) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Tabaldi, 77 A.3d 1124, 165 N.H. 306 (N.H. 2013).

Opinion

Conboy, J.

The defendant, Matthew Tabaldi, appeals his convictions, following a jury trial, for the sale of a narcotic drug (cocaine), see RSA 318-B-.2,1 (2011); possession of narcotic drugs (crack cocaine and cocaine), see id.-, felon in possession of an electronic defense weapon, see RSA 159:21 (2002); and receiving stolen property (a firearm), see RSA 637:7 (2007). He argues that the Superior Court (Lewis, J.) erred by: (1) denying his motion to strike a prospective juror; (2) denying his motions to dismiss the possession of an electronic defense weapon and possession of crack cocaine charges; and (3) admitting certain evidence over his objection. We affirm all of the defendant’s convictions except his conviction for being a felon in possession of an electronic defense weapon. We reverse that conviction with prejudice because we conclude that the evidence was insufficient to convict him of that charge. See State v. Gordon, 161 N.H. 410, 418 (2011) (“[I]f the evidence was insufficient to support the conviction, the Double Jeopardy Clauses of both the New Hampshire and United States Constitutions . . . preclude a new trial.”).

I. Background

The jury could have found the following facts. On March 25, 2009, Heather Taylor was the target of a drug investigation conducted by the New Hampshire Police Narcotics Investigation Unit. The police suspected that Taylor was transporting large quantities of heroin and cocaine from Massachusetts into New Hampshire. The police planned a “controlled buy.” [310]*310In a controlled buy, the police use a confidential informant (Cl) to purchase drugs from a target using paper currency that has been documented by the recording of the bills’ serial numbers (also known as “buy money”). In a controlled buy, officers search the Cl before and after sending him or her to purchase the drugs to ensure that the Cl does not have unaccounted-for money or contraband. Officers also conduct surveillance of the Cl and the target during the investigation.

The police planned for a female Cl to purchase drugs from Taylor on March 25. The plan was for the Cl to go to Taylor’s residence in Rochester, accompany her to Massachusetts, and then return with her to New Hampshire. At approximately 9:00 a.m., State Police Trooper Bryan Trask, Sergeant Ellen Arcieri, and a detective from the Rochester Police Department met with the CL They searched the Cl and her belongings and vehicle, and found no money or contraband. Trask then supplied the Cl with $300 in documented bills (the buy money).

At 11:40 a.m., the Cl drove to Taylor’s residence in Rochester, and police officers followed. Officers observed the Cl enter the residence, where she remained for between sixty and ninety minutes. While the Cl was inside the residence, however, the target of the investigation changed from Taylor to the defendant. The Cl and Taylor left Taylor’s residence and drove together to a residence in North Hampton that the defendant shared with Kenneth Vaillancourt. Surveillance units followed.

At approximately 2:00 p.m., the Cl and Taylor arrived at the North Hampton house. Vaillancourt was at work. Approximately forty-five minutes after entering the house, the Cl exited alone, got into her car, and drove directly to a prearranged meeting place. There, she gave Trask a small plastic baggie containing cocaine. After receiving the cocaine, officers searched the Cl, her vehicle, and her belongings for other contraband, and again found none. She no longer had the buy money.

Thereafter, the defendant and Taylor emerged from the residence and drove away in a gray BMW. The defendant was driving and Taylor was sitting in the front passenger’s seat. Officers then conducted a motor vehicle stop, took the defendant and Taylor into custody, and transported them to the police station. Trask applied for warrants to search the defendant, Taylor, and the BMW.

Before the warrants were issued, Taylor identified certain items in the BMW belonging to her, including a green and purple backpack on the front passenger’s side floor, a purse on the front passenger’s seat, and a black backpack in the trunk. She consented to a search of those items as well as her person. Officers found nothing of significance in the backpacks, but in the purse they found crack cocaine pipes, brass knuckles, lighters, scissors, [311]*311a syringe, a first aid kit, and a digital scale. There was testimony at trial that the buy money was found on the defendant’s person.

Upon executing a search warrant for the BMW, officers found a black bag under the rear passenger’s seat. The bag’s contents — including laptop computers with content linked to the defendant, mail addressed to the defendant, and a notebook entitled “Matthew Tabaldi’s usernames and passcodes” — indicated that the bag belonged to the defendant. Other items in the bag included: a ledger, plastic baggies, a white powder used as a cutting agent to dilute the strength of drugs, a weight for calibrating a scale, and a small torch commonly used for quickly heating drugs. The bag also contained a device police referred to as a “taser.” Additionally, officers discovered a black case under the driver’s seat, which contained drug paraphernalia, including spoons, plastic tubing, copper mesh, and a hypodermic needle. Officers also discovered a digital scale in the pocket of a canvas guitar bag behind the driver’s seat, crack cocaine pipes in a black canvas bag on the front passenger’s seat, and another crack cocaine pipe in the pocket of a jacket on that seat. Finally, a Newport cigarette box containing crack cocaine was found between the driver’s seat and the center console.

Officers also executed a search warrant at Vaillancourt’s residence. In the defendant’s bedroom they found, among other things, an open box of plastic sandwich bags and a white powdered substance that later tested positive for cocaine. On August 20, 2009, the defendant met with Trask and Arcieri at the State Police barracks in Epping, and told them that he dealt drugs. During a recorded telephone call with Taylor on October 2, 2011, the defendant discussed the events of March 25 with her saying, “I had to wait for a girl and make a sale.” Taylor responded, “Don’t be hating. Don’t be hating.” The defendant responded, “Hating? I’m doing a long time for this.”

II. Discussion

A. Motion to Strike Juror

During jury selection, the venire was advised that the defendant was a convicted felon. A prospective juror, H.S., thereafter explained to the trial court, “[H]earing that a gentleman in the defendant’s chair is a convicted felon just makes me a little — somewhat concerned for the charges brought against him.” When asked if she would be able to put her concern aside, the juror indicated, “I will do my best.” The trial court then engaged in the following exchange with H.S.:

[312]*312Court: And you’re going to hear about this, but you’re going to need to expressly and affirmatively be able to say to me that’s —
I’m not trying this case on the basis of someone’s reputation or his past.
H.S.: Yes, sir.
Court: Whether or not the State has proven the case here, beyond a reasonable doubt.
H.S.: Okay.
Court: So you need to be focused in on the evidence here.

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Cite This Page — Counsel Stack

Bluebook (online)
77 A.3d 1124, 165 N.H. 306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tabaldi-nh-2013.